RECORD OF PROCEEDINGS


         IN THE CASE OF:


         BOARD DATE: 27 APRIL 2004
         DOCKET NUMBER: AR2003096588


         I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.

Mr. Carl W. S. Chun		Director
Mr. Kenneth W. Aucock		Analyst

The following members, a quorum, were present:

Mr. Fred Eichorn		Chairperson
Mr. Patrick H. McGann, Jr.		Member
Ms. Marla J. N. Troup		Member

         The applicant and counsel if any, did not appear before the Board.

         The Board considered the following evidence:

         Exhibit A - Application for correction of military records.

         Exhibit B - Military Personnel Records (including advisory opinion, if any).

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THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1. The applicant requests that his discharge under conditions other than honorable be upgraded to honorable or general. He also requests that his DD Form 214 (Report of Transfer or Discharge) be corrected to indicate his overseas service and his blood type as "A," vice the "O" blood type shown. He requests that he be provided his primary MOS (military occupational specialty) score.

2. The applicant states that he was hit in the head and for a while did not know how to correct matters.

3. The applicant provides no evidence.

CONSIDERATION OF EVIDENCE:

1. The applicant is requesting correction of an error or injustice which occurred on 29 February 1972. The application submitted in this case is dated 14 August 2003.

2. Title 10, U.S. Code, Section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitation if the ABCMR determines that it would be in the interest of justice to do so. In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3. The applicant was inducted into the Army on 13 April 1970. He completed training as a Nike-Hercules crewman, and in September 1970 was assigned to a controlled position in an artillery detachment in the United States Army, Europe (USAREUR). Because of his lack of maturity and sense of responsibility, and his inadequate group adjustment, he was released from that assignment and in January 1971 he was assigned to Headquarters and Headquarters Company, United States Army, Southern European Task Force.

4. While on leave in the United States, on 13 September 1971 the applicant went AWOL (absent without leave). Orders published by Headquarters, III Corps and Fort Hood, Fort Hood, Texas, on 19 January 1972 show that the applicant was returned to military control effective on 17 January 1972, and assigned to the Personnel Control Facility at Fort Hood.

5. The applicant's DA Form 20 (Enlisted Qualification Record) shows that he was AWOL again from 27 January 1972 to 13 February 1972, in pre-trial confinement on 14 February 1972, and AWOL again from 15 February 1972 to 29 February 1972.

6. On 17 January 1972 court-martial charges were preferred against the applicant for his first period of AWOL.

7. The applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial. He stated that he had not been subject to coercion with respect to his request for discharge, and that he understood that he might be discharged under other than honorable conditions and furnished an Undesirable Discharge Certificate. He stated that he understood the nature and consequences of the under other than honorable conditions discharge that he might receive. He provided a statement from his counsel. In his statement, that officer stated that the applicant had no problem with the Army and had performed satisfactorily. He stated that the applicant's family needs and Army life came into conflict while he was on leave from Italy, that his father had been out of work and was partially disabled from an automobile accident, and that his family was in need of financial assistance, and the applicant found it impossible to support his family on his Army pay. He stated that the need for the applicant to work as a civilian was greater than continuing to serve in the Army. The applicant's counsel recommended that the applicant be given a discharge for the mutual benefit of the Army and the applicant.

8. On 15 February 1972 the separation authority approved the applicant's request and directed that he be issued an Undesirable Discharge Certificate. He was discharged on 29 February 1972. His DD Form 214 shows that he was separated on temporary records; consequently the foreign service information on his DD Form 214 is incomplete; however, his records do show approximately one year of service in USAREUR from September 1970 until September 1971. That form does show his blood group as "O;" however, his records contain no other information concerning his blood group type, nor is there evidence with respect to any MOS scores.

9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

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DISCUSSION AND CONCLUSIONS:

1. The applicant’s voluntary request for separation for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations. The character of the discharge is commensurate with the applicant's overall record of military service.

2. There is no evidence concerning the applicant's blood group type, other than that shown on his DD Form 214, and there is no evidence regarding MOS scores. Consequently, his request in these matters is not warranted, and will not be further addressed.

3. The applicant has submitted neither probative evidence nor a convincing argument in support of his request.

4. Records show the applicant should have discovered the alleged error or injustice now under consideration on 29 February 1972; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 28 February 1975. However, the applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

5. The evidence shows that the applicant’s record contains administrative error that does not require action by the Board. The necessary corrections will be accomplished administratively by the Case Management Support Division (CMSD), St. Louis, Missouri, as outlined in paragraph 3 of the Determination/Recommendation section below.

BOARD VOTE:

________ ________ ________ GRANT RELIEF

________ ________ ________ GRANT FORMAL HEARING

__FE __PHC _ __MJNT _ DENY APPLICATION

1. The Board determined that the evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.

2. As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law. Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.
3. The applicant's 29 February 1972 DD Form 214 should reflect one year of foreign service in USAREUR from September 1970 to September 1971.



                  _____Fred Eichorn________
                  CHAIRPERSON

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INDEX

CASE ID	AR2003096588
SUFFIX
RECON	YYYYMMDD
DATE BOARDED	20040427
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)
DATE OF DISCHARGE	YYYYMMDD
DISCHARGE AUTHORITY	AR . . . . .
DISCHARGE REASON
BOARD DECISION	DENY
REVIEW AUTHORITY
ISSUES 1.	110.00
2.
3.
4.
5.
6.